Heffley v. NGK Metals Corp., 89-SDW-2 (Sec'y Mar. 6, 1990)

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Heffley v. NGK Metals Corp., 89-SDW-2 (Sec'y Mar. 6, 1990)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: March 6, 1990
CASE NO. 89-SDW-00002

IN THE MATTER OF

WILLIAM L. HEFFLEY,
COMPLAINANT,

NGK METALS CORPORATION,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

ORDER TO SUBMIT SETTLEMENT

The Administrative Judge (ALJ) in this case arising under the employee protection provision of the Safe Drinking Water Act; 42 U.S.C. § 300j-9(i) (1982) (SDWA), issued a Recommended Decision and Order (R.D. and O.) on September 28, 1989. The R.D. and O. held that Respondent discriminated against complainant in violation of the SDWA and ordered Respondent to reinstate Complainant to his position and pay him certain damages and costs.

The Secretary issued a briefing schedule in this case on October 16, 1989, and both parties filed briefs. On January 17, 1990, counsel for Respondent wrote a letter to the Director of the Office of Administrative Appeals stating that the parties have entered into a settlement and that Respondent's request for review of the R.D. and O. is withdrawn.

The Secretary has held a number of times that cases arising under the employee protection provisions of the statutes enumerated in 29 C.F.R. § 24.1 (1989) may not be dismissed on the basis of a settlement unless the settlement has been reviewed¹ and it has been found to be fair, adequate and reasonable and not

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against the public interest. See, e.g., Polizzi V. Gibbs & Hill, Inc., Case No. 87-ERA-38, Sec. Order, July 18, 1989, slip op. at 2-3; Fuchko and Yunker v. Georgia Power Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec. Order, March 23, 1989, slip op. at 1-2; Crider v. Holston Defense Corp. and Yeargin Construction Co., Inc., Case No. 88-CAA-1, Sec. order, March 1, 1989, slip op. at 2; Poulos v. Ambassador Fuel Oil Co., Case No. 86-CAA-1, Sec. Order November 2, 1987, slip op. at 2. Although it is not necessary that the settlement agreement be part of the final order, "when a settlement is not fair and equitable to a complainant, I cannot approve it for to do so would be an abdication of the responsibility imposed on me by Congress to effectuate the purpose of [the Act] . . . ." Macktal v. Brown & Root, Inc., Case No. 86-ERA-23, Sec. order to Submit Settlement Agreement, May 11, 1987, slip op. at 2.

In the interest of judicial economy, rather than remand this matter to the ALJ to review the settlement and submit a new recommended decision, the parties are ordered to submit a copy of the settlement agreement to me for review. If all the parties, including the complainant individually, have not signed the settlement agreement itself, the parties shall submit a certification or stipulation, signed by all parties to the agreement, including the complainant individually, demonstrating their informed consent to the agreement. The agreement should be submitted within thirty days of receipt of this order. If a copy of the settlement is not submitted, the record in the case will be reviewed and a final decision will be issued.²

SO ORDERED.

ELIZABETH DOLE
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹ Section 300j-9 (i) (2) (B) (i) of the SDWA provides in pertinent part for termination of a proceeding "on the basis of a settlement entered into by the Secretary . . . ." In lieu of being a signatory to the settlement, it has been the Secretary's practice to review the terms of the settlement entered into by the private parties.

² I would note that because the ALJ's decision is only a recommended decision, 29 C.F.R. § 24.6 (1989), a request for review was not required to vest jurisdiction in the Secretary. For the same reason, withdrawal of the request for review by Respondent's counsel is not dispositive of this case.